Community prohibitions have strong legal standing: state's top court

By Brian Nearing

Updated 10:39 am, Tuesday, July 1, 2014

Opponents of natural gas hydrofracking declared complete victory in Monday's precedent-setting ruling by the state's highest court that upheld the legality of dozens of local government bans in the Southern Tier and elsewhere against the controversial drilling technique.

The Court of Appeals ruled 5-2 to uphold lower court rulings that supported fracking bans adopted in 2011 by two upstate towns — Dryden in Tompkins County and Middlefield in Otsego County.

Writing for the majority, Judge Victoria Graffeo wrote that state mining law, which gives the state the sole authority to regulate gas drilling, still allows local governments control over zoning to allow or disallow industrial uses like hydrofracking within their boundaries. The two towns "studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately cultivated, small-town character of their communities," Graffeo wrote.

The ruling was "not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve," she wrote.

Hydrofracking is a natural-gas-drilling technique that relies on a high-pressure blend of water, chemicals and sand pumped deep underground to break up natural-gas-bearing rock formations. Opponents said there is increasing evidence that such drilling harms air and water quality, while the industry insists it is safe.

"This is complete and total victory," said Deborah Goldman, an attorney for environmental lobbying group Earthjustice, which represented Dryden. "We would hope that this means there will be no fracking in the state, at least in the near future."

So far, more than 80 towns in New York have used local zoning laws to enact such bans, and another 120 have adopted moratoriums. Others have been waiting to see how the bans fared in court.

Industry supporters said the bans were a "huge obstacle" to open the state to fracking, a decision which is still being weighed by the state Department of Environmental Conservation. The bans had been challenged by a dairy farmer near Cooperstown who held a natural gas lease on the farm, and the bankrupt Norse Energy Corp., which held gas leases in Dryden.

The lawsuit drew filings from both pro- and anti-fracking groups, but Gov. Andrew Cuomo's administration took no public stance in the matter.

"It is one more nail in the coffin," said Brad Gill, executive director of the Independent Oil & Gas Association of New York, which represents gas drilling companies. Even if the state decides to allow fracking, it would force companies to "navigate a patchwork of red lights and green lights."

That would be enough to discourage some companies from coming to the state, Gill said. "Some companies have been waiting on the sidelines, watching for this decision," he said. "Some people will not come to New York and spend money, or they will leave."

"The oil and gas industry tried to bully us into backing down, but we took our fight all the way to New York's highest court. And today we won," said Dryden Supervisor Mary Ann Sumner. "I hope our victory serves as an inspiration to people in Pennsylvania, Ohio, Texas, Colorado, New Mexico, Florida, North Carolina, California and elsewhere who are also trying to do what's right for their own communities."

Helen Slottje, an Ithaca lawyer, came up with the legal theory of using local zoning bans to ban fracking, called the ruling "the definitive, comprehensive, unequivocal endorsement of the rights of the community to decide this for themselves." There are no federal issues at play, so the Court of Appeals ruling cannot be challenged in federal courts.

She predicted more than two dozen towns that have been waiting to for the state court ruling will now move forward to adopt their own bans.

This year, Slottje won a $175,000 prize from the Goldman Foundation for her legal work, gaining international attention. She has plans this fall to address European opponents of fracking at a meeting of the European Union, she said. "We are taking this message national and international," she said.

Fracking proponents have said that, in the event the court ruling upheld the bans, they might take their case to the state Legislature in a bid to have state law changed. Slottje predicted such a strategy would not clear the Democratic-controlled Assembly.

Slottje said the battle between pro- and anti-fracking groups could be played out at the local level in town board elections in the coming months and years. "That would be great, to get more people involved in their local democracy. It is going to be interesting to see what the industry does."

Tom West, an Albany lawyer who represented the bankruptcy trustee for Norse, said he also foresaw that the battle over fracking bans would be carried into local political races as the two sides sought to control town boards. "There are people in these towns who want to see their mineral rights deployed," he said. "I see this becoming a very hot local political issue."

West said that any effort toward undoing state law that allows for local zoning frack bans would be a political long shot. "So this will be the law of the land for a while. It will come down to the local municipalities."

Tom Shepstone, a blogger who writes for the naturalgasnow.com website, said that hundreds of property owners in New York who have signed gas leases "just had their property rights absconded to serve political correctness. Why would anyone invest in New York when their rights can be taken away in a flash at the whim of local elected officials?"

Said Katherine Nadeau, policy director with the Albany-based lobbying group Environmental Advocates of New York, "Cities, towns and villages have long retained the right to protect against industries they believe can cause harm, and this was nothing more than a brazen attempt by frackers to exploit the judicial system for their own financial gain."